Opinion
D056539
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. TOMMY LEE WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCN236445)
APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed.
INTRODUCTION
A jury convicted Tommy Lee Williams of attempted murder (count 1; Pen. Code,§§ 187, subd. (a), 664), torture (count 2; § 206), spousal abuse (count 3; § 273.5, subd. (a)), false imprisonment by violence (count 4; §§ 236, 237, subd. (a)), making a criminal threat (count 5; § 422), and violating a protective order (count 6; § 166, subd. (c)(1)). For counts 1 through 5, the jury also found true allegations Williams personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), and personally used a deadly weapon (§ 12022, subd. (b)(1)).
Further statutory references are also to the Penal Code unless otherwise stated.
The trial court sentenced Williams to life in prison with the possibility of parole for the torture conviction plus a concurrent term of 15 years for the attempted murder conviction and related enhancement findings. The trial court sentenced Williams to time served for the violating a protective order conviction and stayed the sentences for the remaining counts and enhancement findings under section 654.
Williams appeals, contending the trial court abused its discretion by denying his request for a posttrial evidentiary hearing regarding jury misconduct. In addition, he contends the trial court's imposition of a concurrent sentence for his attempted murder conviction violates the prohibition against multiple punishment in section 654. We conclude these contentions lack merit and affirm the judgment.
BACKGROUND
Prosecution Evidence
Williams and the victim married in 2003. In July 2004 the victim intervened in a confrontation between Williams and her teenage son. Williams grabbed the victim's upper arms and threw her into the side of a building, fracturing her left elbow.
The victim moved out of their home in November 2004 in part because of Williams's abusive and controlling behavior. Williams visited the victim in February 2005. He saw some flowers the victim received for Valentine's Day and became angry, yelling and calling the victim names. The victim told Williams to leave and gave him a ride home. On the way, Williams started screaming and yelling. The victim pulled her car over and told him to get out. Williams took the victim's car keys and purse. She struggled with him to get them back. During the struggle, she injured her right arm and thumb.
The victim obtained a "no contact" order after the February 2005 incident; however, Williams continued to call her. Later, at William's behest, the victim obtained a modification of the order to allow for peaceful contact. A couple of months later, the two moved back in together. Williams continued to be "verbally and mentally abusive" to the victim. He restricted her movements within their apartment and followed her in his car when she went outside.
In March 2007 the victim moved out of their residence again. Williams continued to call her and became angry when she did not return his calls. Early one morning in July 2007, after the victim failed to call Williams the prior evening, the victim awoke to hear Williams attempting to enter her apartment through a window in the spare bedroom. Williams told her he wanted to "lay with" or "sleep with" her. Although the victim tried to keep him out, he eventually got into the apartment and left only after she threatened to call the police.
The next day, the victim filed for divorce. She subsequently obtained another "no negative contact" order. Williams was present when the trial court issued the order. When relating the incident to the trial court, the victim, at Williams's suggestion, falsely claimed Williams tried to enter her apartment because she was having a nightmare and was screaming. The victim lied to the court because she was afraid Williams would retaliate against her if she did not.
In October 2007 Williams was temporarily displaced from his home and the victim let him stay with her for two days. Five days after he left, Williams called the victim in the morning and asked to come over and see her. She told him she had other things to do.
The victim left her apartment and, when she returned in the afternoon, she saw Williams in the parking lot walking quickly toward her. The victim hurried into her apartment and locked the door. Williams knocked on the door and asked to come in. The victim told him to leave. Instead of doing so, he dove headfirst through her bedroom window, breaking it. She ran out of the apartment screaming for help. He ran after her, picked her up by the waist, and took her back into the apartment. Once they were inside, he dropped her on the floor.
After locking the front door, he dragged her by her hair into the master bathroom, where he pulled her up and slammed her head into the faucet, the medicine cabinet, and the wall. He called her a "f ---- b ---- " and told her she "made him do this." He then dragged her by her hair into the dining room where he pinned her to the ground and repeatedly punched her in the face. He told her "it was going to be [her] day to die because [she] wouldn't be alive that night because he was going to kill [her]."
Williams dragged her into the kitchen, where he straddled her and continued punching her. He told her he was going to kill her and then kill himself. He rummaged through a kitchen drawer and grabbed a barbecue fork. He pressed the fork under her chin, puncturing her neck. She grabbed the fork to pull it away from her neck and he started punching her again. He picked up a plate of cat food, smeared the food on her face, and then dropped the plate on the floor. She picked up the plate and slammed it against the floor to break off a piece to use to cut him. He laughed at her effort and told her, "I've taken three handfuls of Creatine before I came over here and I'm stronger, and there's nothing you can do."
Williams turned the victim over onto her stomach and straddled her. He placed the prongs of the barbecue fork against her neck. He talked about paralysis and told her he was trying to locate her spinal cord. He then hooked his fingers in her nostrils and pulled her head and legs to bend her backward into a U shape. She told Williams she was having trouble breathing and he told her she was not supposed to breathe. He further constricted her breathing by covering her mouth with his hand and pinching her nose closed.
In addition, Williams put his hands on both side of the victim's face and tried to push her nose into her face. He did the same thing to her eyes, trying to push them into the back of her head. He also put his fingers inside her mouth and started pulling her mouth apart, saying "he wanted to rip [her] face in half so nobody else would ever want [her]."
During the attack, Williams pulled the victim's pants down while unbuckling his own belt. He touched her labia with his finger and indicated he wanted to have sex with her "just one more time." The victim struggled against Williams. He eventually abandoned his effort, saying "F--- it, you ain't worth it."
At some point, the manager of the victim's apartment complex ran to the victim's apartment, pounded on the door, and demanded entry. The victim screamed for help and told the apartment manager to break a window to get inside.
The apartment manager, her husband, and a neighbor entered the victim's apartment through the window Williams broke. They found the victim lying on the floor of the dining room in a fetal position. Williams was nearby holding the barbecue fork. Williams waved the fork and said, "Back off. Leave us alone."
The victim temporarily lost consciousness. When she awoke, Williams was no longer on top of her. He was pacing back and forth in the dining room. The front door was now open and she used her elbows to scoot toward it. When she was partly outside the door, the apartment manager and her husband grabbed the victim's arms and tried to pull her out of the apartment. Williams grabbed her ankles and pulled her back inside. She kicked him in the stomach and started crawling back outside again with help from the apartment manager, her husband, and another neighbor. Williams then jumped on top of the victim and straddled her waist. He put his watch on her wrist and told her he never wanted her to forget the date and time. When the apartment manager, her husband and the neighbor finally got the victim outside, she was covered in blood, her bra was pulled up exposing her breasts, and her pants and underwear were pulled down to her knees.
Williams's demeanor changed once they were outside the apartment. He brushed the victim's hair away from her face and whispered that he loved her. He told witnesses, "She's trying to kill herself. Help her." Police officers ultimately arrived and took Williams into custody at gunpoint.
The victim was hospitalized for six days after the incident. She suffered a concussion, a puncture wound approximately one-quarter inch deep on the left side of her neck, and lacerations on her hands and right elbow. In addition, her eye socket, nose, and a rib were fractured, her jaw was dislocated, and her left ankle was sprained. Many of her injuries were healed by the time of trial; however, she continued to experience numbness in her hands and around her eyes. She also had five floating blood clots in her right eye that affected her vision.
The trauma surgeon who initially treated the victim testified her injuries were not reasonably characteristic of self-inflicted injuries and he believed there was a "very low likelihood" they were self-inflicted. A bloodstain pattern analyst who viewed photographs of bloodstains inside and outside of the victim's apartment drew conclusions consistent with the victim's version of events.
Defense Evidence
Williams's defense was that the victim inflicted the wounds on herself so Williams would be incarcerated and her son, a prison inmate and member of a white supremacist gang, could then arrange for him to be killed. In support of this defense, the parties stipulated the victim and her son had a telephone conversation after Williams's arrest in which the victim's son told the victim to pass a note to the victim's brother, who was in the same jail as Williams. The victim's brother was then to pass the note to the person at the jail who makes decisions for the jail's white supremacist gang. The note was supposed to say the victim's son had obtained permission for the gang to kill Williams. The victim agreed to pass the note to her brother. The prosecutor learned of and spoke with the victim about the death threat 11 days later.
DISCUSSION
I
Denial of Request for Hearing Regarding Jury Misconduct
A
After the verdict, Williams petitioned the court for the release of juror identifying information. In support of Williams's request, a defense investigator submitted a declaration describing statements made by a police detective to the investigator. The detective said some of the jurors approached him after the trial and at least one of them asked him why Williams did not testify.
The declaration also described statements four jurors made to the investigator. The first juror told the investigator all of the jurors were wondering why Williams had not testified, and one of the jurors commented more than once during deliberations that it would have been easier to determine whether Williams was guilty or not guilty if Williams had testified. Nonetheless, the juror told the investigator "it was completely irrelevant because of information we had."
The second juror told the investigator a juror had commented during deliberations about why Williams had not testified. The juror said the comment was minor and had not made a difference. He also said he did not want to discuss the matter further.
The third juror told the investigator there had been a discussion in the jury room during deliberations about Williams not testifying. The juror did not want to discuss the matter with the investigator or defense counsel; however, he said he would discuss the matter with the prosecutor or the trial judge.
The fourth juror told the investigator one of the jurors had wondered aloud why Williams had not testified. The other jurors immediately told this juror Williams was not required to testify.
The trial court sent a letter to the jurors asking them if they were willing to provide their contact information to counsel. Seven jurors responded they did not want to be contacted. Another juror appeared in court and indicated the same thing. The trial court released the remaining jurors' contact information to the prosecutor and defense counsel subject to a protective order.
Williams subsequently moved for a new trial on the ground of juror misconduct. None of the jurors defense counsel contacted was willing to provide a declaration; however, two were willing to discuss the matter with the prosecutor or the trial judge and defense counsel subpoenaed them as witnesses for the hearing on the new trial motion. The prosecutor objected to defense counsel calling the jurors, arguing Williams was required to present evidence demonstrating a strong possibility of prejudicial misconduct before he could call them and he did not do so. In addition, the prosecutor argued the testimony defense counsel wanted to elicit was barred by Evidence Code section 1150 because it would relate primarily to the content of the jurors' deliberations. The prosecutor also argued the purported misconduct was not prejudicial in light of the overwhelming evidence against Williams.
The trial court agreed Williams had not made a sufficient showing of misconduct to require reluctant jurors to testify. The trial court also found that even if Williams had made a sufficient showing of misconduct, there was not a substantial likelihood the misconduct influenced the vote of one or more jurors as "the evidence was in all respects overwhelming." Consequently, the trial court denied the motion for new trial.
B
Williams contends the trial court abused its discretion by denying his motion for a new trial without first conducting an evidentiary hearing to inquire into the claimed jury misconduct. We disagree.
"The trial court has the discretion to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. [Citation.] Defendant is not, however, entitled to an evidentiary hearing as a matter of right. Such a hearing should be held only when the court concludes an evidentiary hearing is 'necessary to resolve material, disputed issues of fact.' [Citation.] 'The hearing should not be used as a "fishing expedition" to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing.' [Citations.] [¶] 'We review for abuse of discretion the trial court's denial of defendant's postverdict request for an evidentiary hearing into allegations of jury misconduct.' " (People v. Avila (2006) 38 Cal.4th 491, 604; accord People v. Dykes (2009) 46 Cal.4th 731, 809-810.)
Here, the only evidence Williams presented of jury misconduct was the defense investigator's declaration containing double hearsay statements from some jurors about what other jurors purportedly said during deliberations. "[O]rdinarily a trial court does not abuse its discretion in declining to conduct an evidentiary hearing on the issue of juror misconduct when the evidence proffered in support constitutes hearsay." (People v. Dykes, supra, 46 Cal.4th at p. 810.)
Moreover, nothing in the record indicates the prosecutor actually disputed the information obtained by the defense investigator. Instead, the prosecutor took the position that the information, even if true, did not amount to prejudicial misconduct. Absent a factual dispute necessitating a hearing to resolve, the trial court acted within its discretion in deciding the motion for new trial without holding a hearing. (People v. Davis (2009) 46 Cal.4th 539, 625.)
Further, if the trial court had conducted an evidentiary hearing and the jurors testified consistent with the statements made to the defense investigator, the testimony would have been that: (1) all of the jurors wondered why Williams did not testify; (2) one juror commented more than once during deliberations that it would have been easier for her to decide the case if Williams had testified; (3) the comment was minor; (4) the other jurors immediately reminded the juror Williams was not required to testify; and (5) the comment did not make a difference in the deliberations. A jury's discussion of a defendant's failure to testify is presumptively prejudicial jury misconduct. (People v. Avila (2009) 46 Cal.4th 680, 726.) However, the presumption of prejudicemay be rebutted . . . by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm." ' " (Id. at p. 726.)
In this case, the jurors' general curiosity about Williams's failure to testify was not substantially likely to have caused Williams actual harm as "[t]ransitory comments of wonderment and curiosity" are "normally innocuous." (People v. Hord (1993) 15 Cal.App.4th 711, 727-728; accord People v. Avila, supra, 46 Cal.4th at p. 727.) Although the one juror's remark about the case being more difficult for her to decide because Williams did not testify carried a greater potential for prejudice, nothing in the record suggests the jurors collectively agreed to disobey the court's instructions and find Williams guilty because he did not testify. In fact, one juror told the defense investigator the remark was met with an immediate reminder Williams was not required to testify, and two other jurors told the defense investigator the remark did not make any difference in the deliberations. Accordingly, we have no difficulty concluding the remark was not substantially likely to have caused Williams actual harm and the trial court properly denied his motion for new trial. (People v. Hord, at p. 728; see also, e.g., People v. Avila, supra, at p. 727 [no prejudicial misconduct from a juror's discussion of the defendant's failure to testify where the discussion was brief, the offending juror was immediately reminded he could not consider this factor, and the discussion ceased]; People v. Loker (2008) 44 Cal.4th 691, 748-749 [no prejudicial misconduct from jurors' comments on the defendant's failure to testify where the comments were brief, the foreperson admonished jurors not to consider this matter, and the comments played no role in the jury's deliberations]; People v. Leonard (2007) 40 Cal.4th 1370, 1424-1425 [no prejudicial misconduct from jurors' comments during penalty phase deliberations that they wished defendant had testified to help them understand him better because merely wishing a defendant had testified is not the same as punishing a defendant or drawing negative inferences because the defendant did not testify].)
II
Concurrent Term for Attempt Murder Conviction
Williams next contends the trial court violated section 654 by imposing a concurrent sentence for his attempted murder conviction. Again, we disagree.
"[Section 654] prohibits the imposition of punishment for more than one violation arising out of an 'act or omission' which is made punishable in different ways by different statutory provisions." (People v. Beamon (1973) 8 Cal.3d 625, 636.) Section 654 applies " ' " not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute . . . within the meaning of section 654.(People v. Beamon, at p. 637; People v. Rodriguez (2009) 47 Cal.4th 501, 507.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Rodriguez, at p. 507; People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Wynn, at p. 1215.) We will uphold a trial court's finding a defendant had a separate objective for each offense if the finding is supported by substantial evidence. (People v Wynn, at p. 1215; People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
Here, the evidence shows Williams had at least two separate criminal objectives during his encounter with the victim: torturing her and killing her. Had Williams only intended to kill the victim, he could have done so immediately upon entering her home. Instead, for purposes of retaliation and perhaps sexual arousal, he first brutally beat, taunted, and threatened the victim with paralysis, suffocation, and stabbing. Although Williams's intent to torture the victim complemented his intent to kill her, this does not preclude the imposition of multiple punishments. (See, e.g., People v. Ibarra (2007) 151 Cal.App.4th 1145, 1153 [separate punishment for corporal injury and attempted murder is permissible where evidence shows the defendant wanted to humiliate and torture the victim before attempting to kill her].) As there is substantial evidence to support the trial court's implied finding defendant's attempted murder and torture convictions involved separate criminal objectives, we conclude the trial court did not err in imposing a concurrent sentence for Williams's attempted murder conviction.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR:
BENKE, J.
IRION, J.